A high Court judge said yesterday he totally rejected any view that the forthcoming trial of the former taoiseach, Mr Charles Haughey, on charges of obstructing the McCracken tribunal was so unique that a special set of rules could be devised for it which would not apply to any future case.
If such rules were devised for the Haughey case, Mr Justice Carney said, he could well see a future case where perhaps a notorious gangland figure would seek to have a similar questionnaire circulated among potential jurors which would "strike terror" into their hearts.
Mr Justice Carney was presiding at a three-judge divisional High Court which unanimously overturned the decision of Judge Kevin Haugh in the Circuit Court last February to send a questionnaire to potential jurors in the trial. Mr Haughey faces two charges of obstructing the McCracken tribunal.
The DPP had challenged Judge Haugh's decision.
The High Court quashed Judge Haugh's order in relation to the questionnaire and also granted a declaration that the Juries Act, 1976, and common law do not permit the questioning of potential jurors in the manner contemplated by the Circuit Court order.
In his decision Mr Justice Carney rejected the suggestion that Mr Haughey's case was so unique that a special set of rules could be devised for him. Such a suggestion was offensive to the constitutional imperative that all citizens should be equal before the law.
He said it would be inevitable that others would in time contend that they should be entitled to the benefit of procedures designed for Mr Haughey.
"I could well see a well-known, indeed notorious, reputed gangland figure, drugs dealer, terrorist or subversive facing trial before the ordinary courts," he said. "Such a figure would in all probability have been targeted by the tabloid press.
"He could then legitimately seek to have issued a similar questionnaire as was designed in respect of Mr Haughey. It would strike terror into the jury panel to receive such a questionnaire."
Earlier Mr Justice Carney said no adult resident in the State could but be aware that Mr Haughey had for some time now been subject to public controversy and adverse publicity, and that the mention of his name was liable to engender strong feelings of support or "of late, embittered condemnation".
Last December lawyers for Mr Haughey sought an adjournment of his trial until a reasonable period of time elapsed after the Moriarty tribunal report had been delivered to the Oireachtas.
They argued that in the current climate of public opinion, following the McCracken and Moriarty tribunals, Mr Haughey's reputation and standing had become so damaged and public passions so inflamed against him that there was a real risk that he would not receive a fair trial.
The adjournment was sought to allow the "fade factor" to take effect.
Mr Justice Carney said if there was a real risk that a jury could not be found which was not so prejudiced against Mr Haughey, whether from pre-trial publicity or otherwise, that he could not obtain a fair trial, then the State would have to forgo its right to prosecute him and he would be effectively immune from prosecution.
That case, however, was never made on Mr Haughey's behalf. Only a delay was sought. The prosecution had opposed any adjournment.
Judge Haugh had ruled there was not at that time a real or serious risk that the accused would receive an unfair trial. But, while refusing an adjournment, Judge Haugh had said he would give further consideration to what additional safeguards in procedures over and above the norm might be adopted in the selection of persons to serve on the jury.
Sending a questionnaire to potential jury members was Judge Haugh's own idea and initiative. It was opposed by lawyers for the DPP.
The proposed questionnaire posed 15 questions for potential jurors, which were read out by Mr Justice Carney. They included whether the jurors had been employed by Dunnes Stores or any of their companies or had any association with Ben Dunne or any Dunne family members; whether they or their immediate family had any association with Guinness Mahon, Irish Intercontinental Bank, Ansbacher Cayman or the late Mr Des Traynor; or whether they or any immediate family member had been employed or associated with Mr Haughey or his family.
Mr Justice Carney referred to the Juries Act, 1976, and said section 15 (3) was the statutory scheme designed by the Oireachtas as the final filter to eliminate disqualified, ineligible jurors and biased jurors, and it worked well.
There was an all-embracing statutory code which did not make provision for a jury being questioned in writing in advance of selection. The Circuit Court judge did not have the statutory power, either express or implied, to take the initiative he did.
In her judgment, Ms Justice Laffoy said there was no express power in the Act which permitted a trial judge, with a view to the formation of an impartial jury or for any other purpose, to request that persons on a jury panel respond in writing to a questionnaire. No such power could be implied.
Mr Justice O'Donovan, in his judgment, said he was not persuaded that requesting replies from potential jurors to the type of questionnaire suggested would be of any greater assistance towards ensuring that an accused obtained a fair trial than an appropriate direction to potential jurors from the trial judge in open court before a jury was selected.
Costs of the hearing were awarded to Mr Haughey.